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Category Archives: social work

Court supplies of “whoop-ass” show no signs of running out

 

I noticed the other day when following some of the Brexit/Bremain debate, that we never hear about the European Wine-Lakes or Butter Mountains any more. You used to always hear that due to weird things in the Common Market, there was a huge oversupply of produce that was being added to faster than it was ever being consumed.  I wonder, idly, whether the European Community has addressed this problem, or whether it never really existed, or whether there are still Wine-Lakes and Butter Mountains but the Press has just got bored of talking about them.

Anyway, one thing that is certainly being added to faster than it could ever be consumed is Her Majesty’s Court Service supply of cans of “whoop-ass”.  Judges continue to try to use it as fast and heavily as they can, but there’s always more to spare.   Use more, behind the scenes memos must be saying, whoop even more ass. Plaintive Court managers are protesting that fresh cases of  cans of “whoop-ass”  are arriving every day, and they are blocking fire exits and that the cleaners can no longer get to their mops and tins of Vim.

Long story short – yet another bout of judicial displeasure.  (Rather more deserved than the last one)

 

D v E 2016

http://www.familylawweek.co.uk/site.aspx?i=ed159351

This was a case in the High Court, a private law dispute between a father and an aunt, with international elements, disputed allegations of physical abuse and domestic violence, a child with multiple problems. So of course, the ideal person to undertake the section 7 report to assist the Court was a newly qualified social worker who knew nothing about Court proceedings or what a section 7 report was.

 

34. On 25 February 2015 His Honour Judge Millon directed the London Borough of Newham to prepare a report pursuant to the Children Act 1989 s 7 (by reason of the local authority having had prior involvement as a result of the section 47 investigation detailed above) considering the issue of whether C should live with the aunt or the father. On 9 July 2015 Newton J directed the social worker to prepare an addendum section 7 report in circumstances where the allocated social worker had not spoken to the partners of each of the parties seeking care of C, to C’s teacher nor to the SENCO worker allocated to C nor secured Police checks in respect of the adults involved. On 21 September 2015 I was required to repeat the direction of Newton J in circumstances where the social worker had still not undertaken these tasks. The social worker had at that date also yet to speak to C alone. I also made clear that the addendum report must include a parallel welfare analysis of the three options available to the court in relation to C’s care.

35. It transpired in oral evidence that the social worker is newly qualified and has never before authored a section 7 report. Her current position with Newham is her first. The social worker told me that her academic studies (a BSc in social work) did not cover the preparation of section 7 reports. She further made clear that the training afforded to her by Newham in preparation for completing what was to be her first section 7 report, comprised a ninety minute discussion with her supervisor.

36. Within this context, it became apparent that the social worker appeared to lack even a basic understanding of the nature of the proceedings in which she was being asked to provide a report, she describing these proceedings as being “private care proceedings” on 12 August 2015 when making enquiries of the hospital at which C was born.

37. Further, it was apparent from the evidence of the social worker (and the late filing of her section 7 report) that there was a substantial delay in the legal department at Newham communicating His Honour Judge Millon’s direction for a section 7 report to the social services department. This delay on the part of the legal department meant that a newly qualified social worker who was already prejudiced by her lack of experience in preparing a section 7 report was further challenged by having limited time in which to prepare what constituted a complex piece of work in respect of a child with complex needs in a complicated family situation spanning two continents.

38. Finally, it is important, and indeed concerning, to note that each of the social worker’s reports were signed off by her supervising Practice Manager as meeting the standards required by the court following a discussion between them. In the circumstances, the mistaken view of the social worker that she was doing that which was required of her was further amplified and reinforced by her supervising Practice Manager. This, perhaps and in part, explains the social worker’s repeated failures to comply with the express directions of the court.

39. Having listened to the evidence of the social worker I was left with the clear impression that her academic social work qualification and such training, administrative support and supervision as was provided to her by her employer left this newly qualified professional poorly equipped to undertake a competent report pursuant to section 7 of the Children Act 1989 in what is a complex and demanding private law case. Such criticisms of the social worker’s work as I feel compelled to make in this judgment must be seen in this context. 

 

[Not quite sure it is as apparent to me that the delay was with Newham Legal Department as it was to this Judge. I have for many many years, at many many different Local Authorities, regularly received Court orders from the Court asking for a section 7 report to be undertaken within 8 weeks of the order, but receiving said order a week after the report was due. I suspect, as a result of cuts – and of course the boxes of Whoop-Ass obscuring the printer, that this is happening more and more.  With Newham Legal not being present to set out to the Court when the section 7 order was received by them, I’m inclined to give them the benefit of the doubt. Not that the Courts ever do anything wrong, ever.]

 

I think that it was decent of MacDonald J to set out the context that these failings were not the social worker’s fault, but the fault of a system that allocates a case that was apparently complex and difficult to a brand new worker.  (Even if you knew nothing at all about the case, the word “High Court” ought to have been sufficient to make the people allocating a section 7 think again)

Within that context, the failings of the report were considerable :-

 

40. The substantive section 7 report contains a significant number of factual errors, contradictions and omissions. These include the periods of time that C has been in the care of the aunt. Of even greater concern, and quite inexplicably, the social worker did not speak to the mother of C, or make any attempt to speak to her, before reaching her conclusions and filing her substantive report. Indeed, the account of the family set out at the beginning of the report simply makes no mention of the mother at all. In addition to being extremely poor practice this had significant forensic consequences. In particular, it meant that the report did not consider the significance of the mother’s allegations of domestic violence and relied solely on the father’s account of the history of the parents’ relationship. Further, when pressed in cross examination by Mr Woolley, the social worker had to concede that even now that she is aware of the issue of domestic violence she has not sought to investigate that issue further with the parties. She likewise conceded that she had not discussed with the father his motivation for making his application nor had she discussed with him his removal of C from the aunt’s care in February 2015.

41. The social worker’s substantive report contains only the most cursory examination of the factors set out in the welfare checklist. Whilst C’s wishes and feelings as expressed to the social worker are set out (about which I will say more below) they are not analysed in anyway by reference to C’s age and understanding or in the context of his ADHD or family situation. C’s health needs are summarised as being “ADHD” with “no other concerns”. There is no mention of C’s global developmental delay, the consequences of his medical conditions or the nature and level of support in place in respect of the same. In relation to the effect of a change of circumstances on C the social worker simply concludes that “if given time to prepare for a change in circumstances C will be able to prepare and adapt” but offers no explanation of why she reaches such conclusion. In respect of the capability of those seeking to care for C in respect of the father the social worker’s conclusions are limited to noting that the father and his partner are “aware” of C’s health and education needs, have identified a school for C and “report that they have routines and boundaries in place when C visits and these would be in place if he lived with them permanently”.

42. Within this context, and as I have already alluded to, the substantive section 7 report contains no parallel welfare analysis of the competing options for C’s care. Indeed, during the course of cross examination by Mr Woolley, the social worker was forced, properly, to concede that her substantive report contains no analysis of C’s best interests. The report is simply a list of facts and statements by the parties followed by a bald conclusion that C should move to live with his father. The social worker simply dismisses out of hand the aunt’s application for a special guardianship (seemingly on the ground that social worker believed such an application to be “irrelevant” in circumstances where the mother had left C with the aunt under a private arrangement). The report recommends that C have direct contact twice per year with the aunt without explaining the welfare rationale for this recommendation.

43. With respect to her first addendum section 7 report dated 30 October 2015 the picture is, regrettably, no better. The social worker had been provided with a wealth of new information from the mother concerning allegations of domestic violence and the contents of the special guardianship report. The social worker had further been provided with information from C’s SENCO, further information from the partners of each parent and the aunt and the disclosure of the relevant Police records relating to allegations of domestic violence and the mother’s medical records. The social worker had also spoken to C alone.

44. Again, notwithstanding that the social worker had been provided with this new information, some of it directly contradicting previous statements made by the father, the addendum report contains no analysis. Further, despite the order of Newton J of 9 July 2015 the social worker had not sought PNC checks in relation to the adults involved. Despite my direction there is no parallel welfare analysis, the report, once again, constituting simply a list of facts and statements with a bald conclusion that C should live with his father. The only welfare factor examined is that of C’s wishes and feelings although, once again, there is no attempt to analyse them by reference to C’s age and understanding or in the context of his ADHD or family situation. I agree with Mr Woolley’s submission that the addendum report gives every impression of the social worker having placed determinative weight on C’s wishes and feelings (an impression reinforced during the social worker’s oral evidence when she stated that C’s wishes and feelings are “paramount”). This time the addendum report recommends, again without explaining the welfare rationale, that C have direct contact four times per year with the aunt.

45. The social worker’s final, undated, addendum report is subject of the same flaws. Again, notwithstanding that she had been provided with new information, and in particular the details of the father’s conviction for violence, and the fact that she had been told by C during a home visit on 18 November 2015 that he was now unsure about what he wanted, the addendum report again contains no analysis. The social worker conceded that she had undertaken no analysis of the significance for or impact of the father’s conviction on her recommendation. Again the addendum report constitutes simply a list of facts and statements with a bald conclusion that the father “has made the necessary changes in his life to enable him the care for C” (although what those changes might be is not specified) and that C should live with his father.

46. I have of course borne in mind that a social worker’s day to day role and knowledge of the court process differs from that of a Child and Family Court Reporter (see Re W (Welfare Reports) [2995] 2 FLR 142 at 146). I have also borne in mind the evidence I have heard from the social worker at this hearing regarding her lack of experience and training. However, for the reasons set out above the substantive and addendum section 7 reports prepared by the social worker nonetheless fall well below the standard expected by the court.

47. In the circumstances summarised above, and where neither the substantive section 7 report or the addendum reports contain any welfare analysis whatsoever of the issues engaged in this case nor a welfare analysis of the competing options available for C, and where the social worker was, despite being given every opportunity, entirely unable in her oral evidence to articulate the analysis and reasons underpinning her recommendation, I have felt unable to attach any weight to the recommendation of the social worker.

48. In addition to constituting a disservice to C and his family, the failure of the social worker, under the supervision of her Practice Manager, to complete her work competently leaves the court in the invidious position of not having before it part of the information the court decided, at the case management stage, was required to determine this matter. I have however concluded that, notwithstanding difficulties with the section 7 reports, I have sufficient information to undertake the forensic analysis I am required to in order to determine the applications before me.

49. In the case of Re K (Special Guardianship Order) [2012] 1 FLR 1265 the Court of Appeal held that where work is incomplete at the date of the final hearing the court must look at the information that is available and determine whether further work is required having regard, inter alia, to developments since the work was directed, the impact of delay and the totality of the evidence available. The Court of Appeal noted that having undertaken such a review it may transpire that evidence is available that covers the ground that the missing work would have covered. In my judgment, having regard to the totality of the evidence before the court, I am satisfied that that is indeed the position in this case.

50. The London Borough of Newham should note that had I been forced to adjourn this hearing due to the deficiencies in the section 7 reports this would have been a case in which, having regard to the decision of Cobb J in Re HB, PB, OB and Croydon London Borough Council [2013] EWHC 1956 (Fam), I would inevitably have had to consider whether a non-party costs order should be made against the local authority.

Section 7 reports are always very tricky. They are vitally important documents to the Court and the parties, but they often come across to Local Authorities as a demand for a report without any covering information as to what the issues are, where the child lives, what is being alleged by the parties, and the questions that the Court specifically want assistance in answering. That is compounded by the fact that (a) They often arrive late from the Court (b) Local Authorities do sometimes sit on them before allocating them (c) They often get allocated to a social worker with very little Court experience such as here and (d) almost all Local Authorities do not operate a scheme where the reports are checked by a lawyer.

 

[Given that my experience of private law cases is that they are a sponge for time, and dealing with a single private law case can easily absorb hours of scarce lawyer time, I can see why that is and please don’t read this in any way as a request or desire for me to become more involved in private law cases than I already am. A single private law case can easily take up the same amount of my time and volume of emails as a dozen care cases…]

 

It was quite tempting to suggest that Courts and parties label particularly complex section 7 reports as such, to make it plain to the Local Authority that this case needs urgent and experienced attention. But in my days as a photocopier-monkey, I used to have a photocopier machine that had a green Turbo button on it, and if you held it down, the machine would go faster. Of course, I held it down all the time. The machine broke. A lot. By the same token, everyone would put “Complex” on all of their requests….

 

[It would, however, be worth Local Authorities assuming that a section 7 request from the High Court is going to need some careful handling]

 

 

On entirely separate matters, the FDAC analysis is out today.

http://www.familylaw.co.uk/news_and_comment/new-findings-show-that-fdacs-save-taxpayers-money#.Vt1xqfmLRaQ

I myself have done some impressive calculations that show that if I eat a jammy dodger today, not only will I have saved money by eating a jammy dodger rather than some beluga caviar, but that the additional sugar content of the jammy dodger will mean that I have a reduced life expectancy, which means that I won’t need to set aside money for my retirement, an impressive saving. Additionally, eating the jammy dodger has a 5% chance of assisting me not to take up smoking, and as I might otherwise smoke for the next twenty years, that’s a cost saving that I need to factor in. The time I spend eating the jammy dodger might be time that I otherwise spend on my Playstation on the Hitman Beta, and thus there is a chance that there might be medical savings to be recouped from the potential in years to come of carpal tunnel syndrome. My dog might benefit from any crumbs I have dropped, meaning a saving on dog biscuits.  I do have to offset for the additional electricity that the Roomba will consume to pick up any crumbs that the dog misses (but knowing my dog, that is quite unlikely). It is also quite plausible that if I had not had the momentary high of the chewy jamminess of the biscuit that I might eventually end up trying to compensate for this by taking up an expensive hobby such as hang-gliding with associated start up costs – the NHS could save substantially by not having to treat the broken leg that I could notionally sustain.

All in all, it emerges that every pound I spend on Jammy Dodgers results in a saving to me of £2.30.

Imagine how much I could save if I decided to eat “Pie in the Sky” instead.

/sarcasm

 

 

And the office boy kicked the cat

You don’t often get law reports of Interim Care Order hearings, especially now that the senior Courts have finally stopped tinkering with the wording/putting a gloss on the statute / clarifying and refining the law. This one was a High Court decision, and the Judge (Keehan J) was investigating delay in issuing.

Big practice note for everyone – because this is High Court and we all need to follow it :-

 

The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.

 

[If I may suggest – draft the bloody statement before the birth, and add to it, rather than start writing it after the baby is born. I know nobody wants to do that, just in case they win the lottery and are able to quit their job and avoid writing the statement, but seriously – have it ready in draft in advance. Babies have a nasty habit of arriving at a time that is least convenient]

 

Nottingham City Council v LW and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/11.html

You can get the tone of how this case is going to go from this very early paragraph.

A birth plan was prepared. It is not, however, worth the paper it is written on because, as it now transpires, it was ignored by everyone connected with the local authority

 

The mother had had a previous child who had been the subject of care proceedings. In fact, it looks as though those proceedings might have been ongoing into at least the late stages of pregnancy, because those proceedings were issued in May 2015. The judgment doesn’t say that the proceedings had actually ended by the time that the new baby was born in January 2016.  (It ought to have ended, on the 26 week rule, but to quote Neil Gaiman “Intent and outcome are rarely coincident”

 

 

  • The hospital, where LW was born on 16 January, notified the social workers of her birth on Monday 18 January.
  • It then took the social workers until 21 January to place the papers before the local authority’s solicitors for consideration of the issue of care proceedings. It took a local authority solicitor until 28 January to issue care proceedings and to apply for an ‘urgent’ interim care order.
  • The local authority’s application, interim threshold criteria and social work statements in support were not served on the parents’ respective solicitors nor on the children’s guardian and her solicitor until about 12.30pm on 28 January. The case was called on before me at 3pm, there being no justices, district judge or circuit judge available to hear the matter at such short notice.

 

It is hard to see an excuse for a hearing taking place in a rush on 2 1/2 hours notice when the baby had actually been born 12 days earlier.

It is not therefore a shock that the Judge wanted to hear from the Director of Children’s Services and the Head of the Legal Department as to why this had happened.  [For my part, I can’t say I’m happy that the legal department tried to throw one of the secretaries under the bus. I would NEVER EVER do that to any of the hard working people in my office who do so much to make things run smoothly and well.]

 

 

The Director of Children’s Services said this:-

 

 

“….I would like to offer my sincere apologies to the court for the delay in issuing proceedings. I understand this caused a number of challenges for those responsible for allocating court time and to all the parties involved who represent the parents and others involved in this case.

In this particular case, I understand however that there had been ongoing communication with the parties legal representatives about the Local Authority’s intention to issue proceedings.

I believe all parties worked on the premise that issuing should take place once all the paperwork including statements from health colleagues had been submitted and the social worker statement had been amended to include the new information from the hospital in relation to father’s alleged overdose, the withdrawal symptoms of baby and the anonymous referral received following LW’s birth. This contributed to the delay in issuing.

I fully accept that the ideal course of action would have been to issue proceedings as soon as possible after the first working day following the birth, namely the 18th January and the Local Authority could have filed a statement making it explicit that further information had come to light which required immediate investigation and seek the court’s permission to submit an updated statement once these investigations had taken place. Again, the social worker statement could have included information reported by health colleagues, making it clear that health colleagues would be required to submit statements as soon as possible following the lodging of the care application.

Furthermore, the Local Authority will ensure that team secure emails are checked on a frequent basis by the team’s Business Support Officer or the team’s duty social worker so they can alert managers when important documents have been received. This will prevent documents “sitting in the inbox” when social workers/ case holders are absent from work due to sickness or annual leave.

Again, please accept my apologies for this delay. The staff involved in this matter take their roles very seriously and did work hard to produce all the materials required by the court, as expeditiously as possible. However, we have all learnt from this experience and will ensure that issuing is done in a timely manner. The staff involved also offer their sincere apologies for the delay and did not wish to cause the court and parties any offence. They were working hard to gather all the necessary evidence and ensure all parties had full and up to date records of recent events. Again the team recognises the need to issue proceedings as soon as possible following the birth of the baby and will ensure this message is shared across their team…..

….LW’s half-brother is currently subject to care proceedings on the basis of concerns arising from domestic violence. The pre-birth assessment of LW concluded that the risks remained as the mother had not changed or accepted the concerns, but instead minimised the domestic abuse and impact this would have on her as yet unborn child’s development and safety.

A Legal Planning meeting was held on the 16th December 2015 chaired by a Children’s Social care service Manager with legal advice and support from the Team leader of the Local Authority’s Children and Adults Legal Team. The decision to issue proceedings was then ratified by me as Head of Service for Children’s Social Care.

It would be usual practice to issue proceedings on the day of birth and I have investigated this matter to try and ascertain why in this case, proceedings were not issued until the 27th January, 8 working days following LW’s birth. I met with the Team Manager, SD, and her covering Service Manager on Friday 29th January and with the Children and Adults Legal Team Leader on Monday 1st February in order to review events and determine reasons for this delay. I set out below the key events as they unfolded and which contributed to the delay in issuing proceedings….”

It isn’t great that the social work team took five days (less working days, obviously) to produce their statement, given that all concerned knew that the intention was to issue proceedings and that a baby would be born in January. Having said that though, having the statement ready on 21st January would still have allowed for a hearing on notice, and the delay of seven days to get the application issued once the statement was prepared is hard to understand.   [The longest and toughest part of issuing an application is of course the social worker writing the statement. The actual application is a horrible soul-crushing bout of tedium, but it really doesn’t take that long. In one dreadful day in December, I did three of these in a morning]

So what did the legal department have to say?  Well, as indicated earlier, they threw the lowest paid person in the room under the bus.

“On 19th January 2016, Legal Services were updated by the social worker following her hospital visit to see mother, father and the baby. The social worker advised there had also been an anonymous referral to the hospital made the previous evening stating that the mother had used opiates throughout her pregnancy. The hospital had also expressed concerns about the baby’s health and they would be undertaking a Rivers chart assessment as they were concerned the baby was experience withdrawal symptoms. I refer to the statement of TN for an explanation regarding what the Rivers Chart assessment is.

In light of the recent information, the social worker needed to update her statement and this was sent to Legal Services on 21st January 2016. By this point there were and had been some difficulties between the social worker and hospital in obtaining medical information regarding LW’s withdrawal and also the father’s overdose. Legal services confirmed that they would assist in seeking this information from the hospital.

On Friday 22 January the hospital emailed over a midwife’s report to the social worker’s team secure email. Unfortunately as the social worker was off sick on Monday 25th January, this statement was not picked up by the social worker until Tuesday 26th January, when it was forwarded on to Legal Services. Unfortunately the allocated solicitor was not in work on the 26th as she works part-time so the first that the solicitor saw of both the midwife’s report and the final paperwork from the Social Worker (the chronology) was on Wednesday 27th January, when the matter was issued. As the hospital was not pressing for discharge until the end of the week the Court were notified with the application that the matter could wait until Friday 29th January for listing if that would assist the Court…..

…the final updated social worker documents were received by Legal on 26th January and the case was issued with the court during the afternoon of 27th January and the court was advised that a hearing the following day was not necessarily needed and the matter could wait until the day afterwards, namely Friday 29 January if that would assist the Court. In the meantime the hospital emailed over further health evidence, a second midwife report and chronology, once again to the chronology, once again to the social worker until the morning of 28th January and then passed on to Legal Services.

The court duly issued the matter during the afternoon of 27th January and listed the case to be heard before a District Judge at 2pm on Thursday 28th January2016. The allocated solicitor left instructions with the team legal secretary to inform CAFCASS and also provide them with copies of the local authority application and also to counsel who would be representing the Local Authority on 28th January.

Unfortunately, the team secretary did not file and serve the Local Authority’s application on the Parent’s solicitors at the same time. I apologise on behalf of the Local Authority for their regrettable oversight. To give this error some context, due to an unexpected absence and vacancies within the secretarial team, the secretary was working on her own that day in a secretarial team which usually consists of four secretaries and was inundated with work. She is very sorry for the problems her oversight caused.

It is also further regrettable that it was not noted that the parents’ solicitors had not been served with the Local Authority’s application until late in the morning on 28th January. It was immediately rectified but unfortunately this was less than two hours before the hearing. Once again I apologise on behalf of the Local Authority for this delay. The Local Authority has been made fully aware of the dissatisfaction expressed by Mr Justice Keehan who heard the matter on 28th January and has not taken this matter lightly. There has been a full review into the circumstances surrounding the issue of this matter both by legal Services and also Children’s Services.

It is accepted that there has been a delay in the issuing of this matter and no disrespect was intended to the court and parties. It is hoped by providing a chronology in respect of what has happened in the conduct of the matter since the birth of LW that Mr Justice Keehan and the court can be reassured that this matter was continually worked and as a result of the critical new information and concerns around events that took place around the birth of LW involving the father’s suspected overdose and also the anonymous referral that the mother possibly had been using opiates through pregnancy that such concerns had to be rigorously investigated and also further evidence adduced in order for the Local Authority to rely on this, particularly, as the Local Authority’s Care Plan was to seek an Interim Care Order with removal of LW from her parents’ care.

In addition, the Parties solicitors were updated as regards progress with the matter. Sadly for LW the hospital had concerns that she maybe experiencing withdrawal symptoms and the hospital were obviously keen to keep her in hospital for monitoring. LW also suffered a seizure on 25th January. Therefore, any delay in the matter being heard before the court had thankfully not caused any inconvenience to the hospital.

Nevertheless in reviewing this matter I accept that should this scenario happen again in the future the appropriate course of action would be for the matter to be issued at the earliest possible opportunity following the baby’s birth. There would then be liaison with the court around further evidence being sought by the Local Authority to assist the court as to how urgently the matter needed to be listed, particularly as in this scenario the Local Authority were seeking an interim Care Order and removal which was and is still to be contested by the parents. The Team Leader for the Children and Adults legal team will ensure that the team is fully aware of the need to take this approach in future cases….”

Hmmm. I’m struggling with the Judge’s opening summary, where he says that the social work documents were with legal by 21st January, because the legal chronology here says 26th January.

The Judge accepted the apologies, but still felt that there was some egregiously poor practice here – and indicated that as there were some failings here which were not unique to this authority but things that happened too often in cases, it was worth highlighting them. In particular, he was concerned at the practice of delaying issuing an Interim Care Order application because a hospital was willing to keep a child for a longer period than would usually take place.  (It is fairly usual to seek an ICO in 4 or 5 days after birth, to allow the notice period and the hospital be asked to keep mother and baby together in the hospital with mother’s agreement.  The Court can’t always accommodate that, and this is particularly an issue where those 4 or 5 days would encompass a weekend, or worst still a Bank Holiday weekend)

I also note that having accepted the Local Authority apologies, the Judge did still take them to task for being a serial offender in late applications, and also ordered them to pay the costs.

[I can’t help but note that Keehan J was a lot harder on this authority than he was on the one in last week’s case who sought an injunction effectively labelling a man as a sexual exploiter of children having got the wrong man…]

Local Authority – Failings and Poor Practice

 

  • In my experience the errors made in this case are not an isolated example nor is the factual matrix of this case either unique nor even exceptional: on the contrary this case is fairly typical of the type of case in which local authorities propose or plan to seek the removal of a baby at birth. Thus, what principally concerns me is that such fundamental and egregious errors should be made in, what may colloquially be termed, ‘a run of the mill case’. In paragraph33 below, I consider what steps should be taken by a local authority when it plans to seek the removal of an unborn child immediately or shortly after his/her birth.
  • Before I do so, I wish to make certain observations on the flawed approach apparently endorsed by both the senior children’s services manager and the local authority’s senior lawyer in this case. First, both made reference to the willingness of the hospital to keep the baby as an in patient pending the issue of care proceedings. Plainly the period of time for which a hospital is prepared to keep a new born baby as an in-patient, either on medical or welfare grounds, maybe a material consideration for a local authority on the timing of the making of an application for an interim care order, but must not place too great a reliance on these indications or assurances. The fact that a hospital is prepared to keep a baby as an in-patient is not a reason to delay making an application for an interim care order. The following should always be borne in mind:

 

a) a hospital may not detain a baby in hospital against the wishes of the mother or a father with parental responsibility;

b) the capability of a maternity unit or a hospital to accommodate a healthy new born child may change within hours, whatever the good intentions of the unit or hospital, depending upon the challenging demands it may be presented with;

c) the ability to invite the police to exercise a Police Protection Order, pursuant to s 48 of the 1989 Act or for a local authority to apply for an Emergency Protection Order, pursuant to s.36 of the 1989, are, of course, available as emergency remedies,

d) but such procedures do not afford the parents nor, most importantly, the child, with the degree of participation, representation and protection as an on notice interim care order application;

e) the indication of a maternity unit as to the date of discharge of a new born baby should never, save in the most extraordinary of circumstances, set or lead the time for an application for an interim care order in respect of a new born child.

 

  • Second, where the pre birth plan provides for an application to be made for the removal of a child at or shortly after birth, it is neither “usual” nor “ideal” practice for an application for an interim care order to be made on the day of the child’s birth, rather it is essential and best practice for this to occur.
  • Third, once it is determined by a local authority that sufficient evidence is available to make an application for an interim care order, on the basis of the removal of a new born child, the availability of additional evidence from the maternity unit or elsewhere, must not then cause a delay in the issue of care proceedings; the provision of additional evidence may be envisaged in the application and/or provided subsequently.
  • The local authority should have adopted good practice and the following basic, but fundamental, steps should have been taken:

 

a) The birth plan should have been rigorously adhered to by all social work practitioners and managers and by the local authority’s legal department;

b) A risk assessment of the mother and the father should have been commenced immediately upon the social workers being made aware of the mother’s pregnancy. The assessment should have been completed at least 4 weeks before the mother’s expected date for delivery. The assessment should then have been updated to take account of relevant events immediately pre and post delivery which could potentially affect the initial conclusions on risk and care planning for the unborn child;

c) The assessment should have been disclosed, forthwith upon initial completion, to the parents and, if instructed, to their solicitors to give them an opportunity, if necessary, to challenge the assessment of risk and the proposed care plan;

d) The social work team should have provided all relevant documentation, necessary for the legal department to issue care proceedings and the application for an interim care order, no less than 7 days before the expected date of delivery. The legal department must issue the application on the day of birth and, in any event, no later than 24 hours after birth (or as the case may be, the date on which the local authority is notified of the birth);

e) Immediately upon issue, if not before, the local authority’s solicitors should have served the applications and supporting documents on the parents and, if instructed, upon their respective solicitors.

f) Immediately upon issue, the local authority should have sought from the court an initial hearing date, on the best time estimate that its solicitors could have provided.

 

  • If these steps had been followed in this case, unnecessary delay and procedural unfairness would have been avoided.

 

Conclusions

 

  • The local authority was inexcusably late in making an application for an interim care order. The consequences of this contumelious failure were that:

 

i) The parents’ legal representatives were served with the application and supporting, albeit deficient, documentation only some 2-3 hours before the hearing;

ii) The court was unable to accommodate a 1 day contested hearing for an interim care order before a circuit judge, a recorder or a district judge until some days hence;

iii) The parents legitimately wished to have a fully contested interim hearing with the benefit of oral evidence to cross examine the social worker and the guardian and to enable the parents to give oral evidence;

iv) The hospital was ready to discharge the child and, for wholly understandable reasons was unwilling and unable to care for the baby for a further prolonged period;

v) The stance of the hospital and the principal, but unchallenged, evidence of the local authority was that the baby would be at risk of suffering significant harm if she were discharged into the care of either the mother and/or the father;

vi) Accordingly and acting in the best welfare interests of the baby, as advised by the children’s guardian, the court had no choice but to make an interim care order in favour of the local authority on the basis of a plan to place the baby with foster carers; but

vii) On the basis that the local authority, at whatever cost and inconvenience to itself, would arrange contact to take place five times per week between the child and her parents.

 

  • I am in no doubt that the parents in this case have been done a great dis-service by this local authority. It may well be that the outcome would have been the same whatever the length of notice that they and their respective legal advisors had had of this application; that is not the point. It is all a question of perceived and procedural fairness.
  • The actions of this local authority, in issuing an application for an interim care order so late in the day, have resulted in an initial hearing before the court which, I very much regret, is procedurally unfair to the parents. Of equal importance, it is unfair to the children’s guardian who was only appointed on the morning of the issue of this application. The fault for this unfairness lies squarely at the door of this local authority.
  • I am in no doubt that if this application for an interim care order had been issued timeously by the local authority then the hearing before me on 28 January 2016 could have been an effective contested hearing.
  • In the premises I have no hesitation in concluding that the costs of this abortive hearing should be borne by the local authority. Accordingly I shall order the local authority to pay the costs of all of the respondents to be assessed if not agreed.
  • This local authority is, I am told and accept, a ‘serial offender’ in issuing late and ‘urgent’ applications for care proceedings and/or interim care orders in respect of new born babies. Save in respect of clandestine pregnancies and/or births, I simply do not understand why this local authority issues proceedings so late and so urgently. In this case it was a most spectacular and contumelious failure.
  • The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.
  • Given that in the vast majority of cases a local authority will be actively involved with the family and/or aware of the pregnancy and the estimated date of delivery, I cannot conceive how such a requirement places an unreasonable and/or disproportionate duty upon a local authority. Further it is likely that a local authority’s failure to act fairly and/or timeously will be condemned in an order for costs.
  • In this case the local authority wholly and unreasonably failed the child, her parents and the children’s guardian.

 

 

The new Special Guardianship Regulations

As trailed at the start of the year.

The Special Guardianship ( Amendment ) Regulations 2016

http://www.legislation.gov.uk/uksi/2016/111/contents/made

 

These have been introduced by the Government, in response to their consultation about Special Guardianship Orders and the feeling arising from that consultation that some additional factors needed to be included within Special Guardianship reports.  The new additions come into effect for any report that was commissioned (either by request by prospective Special Guardians or ordered by a Court) AFTER 29th February 2016.

That does raise the possibility that someone who asks for an SGO assessment on 28th Feb ends up with a slightly different one to a person who asks for it the next day.

The original Special Guardianship Order Regulations 2005 set out all of the matters that need to be included in a Special Guardianship report, and they add up to sixty eight items in all.

 

The new Regs add

In the section about the child

 

any harm which the child has suffered;

any risk of future harm to the child posed by the child’s parents, relatives or any other person the local authority consider relevant;

And adds to the part about assessing the child’s needs – current or in the likely future

In the section about the prospective Special Guardians

 

an assessment of the nature of the prospective special guardian’s current and past relationship with the child

[Meaning that the report will look at what the special guardian means to the child and vice versa, over and above the pure genetic relationship – one would assume that a prospective special guardian who had spent time babysitting or caring for the child or having regular visits would thus compare favourably to one who was genetically related to the child but had never met them. ]

And on the assessment of parenting capacity of the Special Guardian

an assessment of the prospective special guardian’s parenting capacity, including:

(i)their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;

(ii)their understanding of, and ability to protect the child from any current or future risk of harm posed by the child’s parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;

(iii)their ability and suitability to bring up the child until the child reaches the age of eighteen;

 

[This is incorporating a concept of reparative parenting into the assessment.  As I’ve said before, one person’s reparative parenting is another person’s social engineering, so we probably won’t know how this is going to work until the Court of Appeal tell us]

The changes are pretty sensible to me. They are additional factors to an existing pool of sixty eight factors. As Special Guardianship is intended to be a permanent solution for children, it must be right that the likelihod of the placement enduring permanently is considered.

The Regulations say nothing about how much weight any of these new factors have to be given within the assessment, just that they are mandatory factors to be identified and considered.

The real crux is in drawing together the factors and making a conclusion. I’m sure that some will argue that there can be no hard and fast rules about what is to be given what weight, and some will argue that as Parliament (or rather Government, as this is by way of Regulation not Act) has spoken and felt it necessary to include these additional factors that they should be assumed to carry some weight and force within assessments, for good or ill.

 

As these are Regulations, they do not impose on the Court a duty to particularly take these matters into account, although they will be delineated specifically within a report now rather than inferred or pieced together through other matters. It would be a somewhat churlish Court that ignored them completely. As I’ve said, it is the weight to be given, and particularly how far the reparative care element is taken that is likely to be the subject of litigation and debate.

 

[We are, I think, a month after the Minister ‘unveiled’ the major changes to adoption law, without seeing a glimpse of what lies under the veil. Maybe tomorrow.]

Court of Appeal – section 20 abuse

 

There have been several reported cases about Local Authorities misusing section 20 now, to obtain “voluntary accommodation” of children in foster care where the ‘voluntary’ element doesn’t seem all that voluntary, and therefore it was only a matter of time before the Court of Appeal fell upon such a case and made an example of it.

 

Here it is:-

 

Re N (Children: Adoption : Jurisdiction) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html

 

As you can see from the title, it is also a case about adoption and the jurisdiction to make adoption orders about children who are born to foreign parents or who live overseas by the time the order is made.  I would really want more time to ponder those parts of the judgment before writing it up.

 

This particular sentence from Aitkens LJ is probably worthy of a piece on its own – raising the issue of ‘limping adoption orders’

 

There is one further comment I wish to make. Both the President and Black LJ have emphasised that when an English court is considering making a placement order or adoption order in respect of a foreign national child, it must consider, as part of the “welfare” exercise under section 1(4) of the 2002 Act, the possibility of the result being a “limping” adoption order. By that they mean an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. There is a danger that natural parent(s) (or perhaps other parties) who oppose the adoption, will attempt to turn this factor into a major forensic battle by engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, in particular the state of the nationality of the natural parent(s). Those legal opinions might then be challenged and there is the danger of that issue becoming expensive and time consuming “satellite litigation”. I hope that this can be avoided by a robust application of the Family Procedure Rules relating to expert opinions.

 

So, focussing just on the section 20 issues  (If you want the background to what section 20 is, what drift is and why it is a problem, I’ll point you towards my most recent piece on it  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/)

 

This is what the Court of Appeal had to say  (and this is one of those judgments that the President has cascaded down – which is a posh way of saying “sent by email to all Courts saying that they must read it and follow it”)

 

  1. Other matters: section 20 of the 1989 Act
  2. The first relates to the use by the local authority – in my judgment the misuse by the local authority – of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013, yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.
  3. As I said in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11, para 100:

    “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated.”

    I drew attention there, and I draw attention again, to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam). As Keehan J pointed out in the latter case (para 37), the accommodation of a child under a section 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case the local authority ended up having to pay substantial damages.

  4. Then there was the decision of Cobb J in Newcastle City Council v WM and ors [2015] EWFC 42. He described the local authority (paras 46, 49) as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re CB (A Child) [2015] EWCA Civ 888, para 86, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division in Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), another case in which the local authority had to pay damages.
  5. Moreover, there has in recent months been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong, on occasions withering, language, for misuse, and in some cases plain abuse, of section 20: see, for example, Re P (A Child: Use of S.20 CA 1989) [2014] EWFC 775, a case involving the London Borough of Redbridge, Re N (Children) [2015] EWFC 37, a case involving South Tyneside Metropolitan Borough Council, Medway Council v A and ors (Learning Disability: Foster Placement) [2015] EWFC B66, Gloucestershire County Council v M and C [2015] EWFC B147, Gloucestershire County Council v S [2015] EWFC B149, Re AS (Unlawful Removal of a Child) [2015] EWFC B150, a case where damages were awarded against the London Borough of Brent, and Medway Council v M and T (By Her Children’s Guardian) [2015] EWFC B164, another case where substantial damages were awarded against a local authority. I need not yet further lengthen this judgment with an analysis of this melancholy litany but, if I may say so, Directors of Social Services and Local Authority Heads of Legal Services might be well advised to study all these cases, and all the other cases I have mentioned on the point, with a view to considering whether their authority’s current practices and procedures are satisfactory.
  6. The misuse of section 20 in a case, like this, with an international element, is particularly serious. I have already drawn attention (paragraphs 50-51 above) to the consequences of the delay in this case. In Leicester City Council v S & Ors [2014] EWHC 1575 (Fam), a Hungarian child born in this country on 26 March 2013 was accommodated by the local authority under section 20 on 12 April 2013 but the care proceedings were not commenced until 10 October 2013. Moylan J was extremely critical of the local authority. I have already set out (paragraph 115 above) his observations on the wider picture.
  7. What the recent case-law illustrates to an alarming degree are four separate problems, all too often seen in combination.
  8. The first relates to the failure of the local authority to obtain informed consent from the parent(s) at the outset. A local authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent. We dealt with the point in Re W (Children) [2014] EWCA Civ 1065, para 34:

    “as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.”

  9. In this connection local authorities and their employees must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 46:

    “(i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under s 20 to have their child accommodated by the local authority and every local authority has power under s 20(4) so to accommodate provided that it is consistent with the welfare of the child.

    (ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

    (iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by s 3 of the Mental Capacity Act 2005, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

    (iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

    (v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

    (a) Does the parent fully understand the consequences of giving such a consent?

    (b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

    (c) Is the parent in possession of all the facts and issues material to the giving of consent?

    (vi) If not satisfied that the answers to (a)–(c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

    (vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

    (viii) In considering that it may be necessary to ask:

    (a) What is the current physical and psychological state of the parent?

    (b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

    (c) Is it necessary for the safety of the child for her to be removed at this time?

    (d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

    (ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

    (x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.”

  10. I add that in cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.
  11. The second problem relates to the form in which the consent of the parent(s) is recorded. There is, in law, no requirement for the agreement to be in or evidenced by writing: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 53. But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature.
  12. A feature of recent cases has been the serious deficiencies apparent in the drafting of too many section 20 agreements. In Re W (Children) [2014] EWCA Civ 1065, we expressed some pungent observations about the form of an agreement which in places was barely literate. Tomlinson LJ (para 41) described the agreement as “almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress.” In Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), the Deputy Judge was exceedingly critical (para 65) both of the terms of the agreement and of the circumstances in which the parents’ ‘consent’ had been obtained. There had, he said, been “compulsion in disguise” and “such agreement or acquiescence as took place was not fairly obtained.”
  13. The third problem relates to the fact that, far too often, the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration.
  14. This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

    “Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

    This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

  15. It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above: i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

    ii) The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

    iii) The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

    iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

    v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

  16. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

 

The marker is down then.  Any LA facing a challenge about misuse of section 20 is on notice that damages may follow, and certainly where the misuse begins after today’s judgment one would expect damages to play a part.

 

The President also tackles here something which has been on my mind for a month. The practice by which agreement is reached that an Interim Care Order is not needed, because the parent agrees (either in a section 20 written agreement) or in a preamble in the Court order that they “agree to section 20 accommodation and agree not to remove without giving seven days notice”   – that is a fairly common compromise which avoids the need for an ICO or to have a fight in Court about the child’s legal status where it is agreed by the parents that the child should stay in foster care whilst assessments are carried out.

 

As the President says here

 

para 169

 I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

 

and here

para 170

iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8)

 

I don’t think that this is legally permissable any longer. (The Court of Appeal could, of course, have said explicitly that such a fetter can only be made where the parent agrees after having had independent legal advice, but they didn’t)

That means that Courts up and down the country are going to be faced with arguments as to whether the right thing for a child is to make an Interim Care Order, OR to rely on a section 20 agreement that could be withdrawn at any time  (including the obvious nightmare scenarios of “twenty minutes after we leave Court” or “at five to five on a Friday night” or “at 5pm on Christmas Eve).

 

The other thrust of the President’s comments on section 20 (8) objections are that as a result, surely even a delay in return of the child to place the matter before the Court for an EPO hearing is going to be a breach unless the parents themselves agree to that course of action.  That in turn raises the spectre of an increase in children being taken into Police Protection, since a forseeable outcome of this case is:-

 

(A) Parent says at 4.55pm on Friday “I want little Johnny home now, I object to section 20”

(B) LA are in breach of the Act and may be committing a criminal offence if that child is not on his way home by 4.56pm

(C) Courts aren’t likely to be able to hear an EPO application on one minutes notice

(D) The police remove under Police Protection instead

 

  [I seriously don’t recommend that as an option as a result of the many cases which batter social workers and police officers for misuse of Police Protection, but I do wonder whether the current case law on Police Protection really works after Re N  – those cases making it plain that it should be the Court decision not a police decision only work if there is time to place the matter before the Court.  BUT until one of them is challenged and the law on Police Protection changes, almost any removal under Police Protection can be scrutinised and perhap[s condemned.  And of course the alternative to THAT, is that more and more cases will instead find their way into care proceedings.  I think that the decisions on Police Protection and section 20 are right, but if we have learned nothing else since the Family Justice Review it should be that fixing one problem often has substantial unintended consequences and causes another problem elsewhere]

 

So, LA lawyers up and down the country, get hold of the current section 20 agreement, and rewrite it to comply with this judgment.

Fast and the Furious – Tunbridge Wells Drift

 

 

Okay, this piece isn’t really about Vin Diesel and The Rock racing cars around the backstreets of Kent. But it is about a case about  Medway (which is sort of near Kent) weren’t fast, and as a result the Judge got furious. And where the central issue was drift.  Section 20 drift, y’all.

(*Tunbridge Wells have done nothing wrong in this story – I just needed a “T” town for the Tokyo Drift reference. )

 

I’ve been writing about section 20 drift for a while, but perhaps given that this is a really strong judgment, it is worth a quick recap.  The Human Rights Act compensation to be paid to the mother by Medway was £20,000 and to the child also £20,000.   (And possibly costs to follow – see bottom of this post for an explanation of that)

 

 

  • Without a court forum it was solely the local authority that empowered itself to make decisions about a child unlawfully held by them, with simply a check in the form of the IRO system on the progress and welfare of a child in local authority care (and which system I consider further below).
  • T drifted in foster care without any clear focus on her contact, her need for therapy or her and her Mother’s rights to family life. I find shocking the inattention to contact, such that Medway Council is not even able to specify clearly what has and has not taken place, but is obliged to admit to serious gaps in contact and flaws in its support for this essential aspect of their family life. There would not only have arisen a duty under s34 Children Act 1989 to promote contact if an ICO were in place, but both T and Mother would have had a voice, legal advice and representation within proceedings to pursue their concerns about her accommodation, care plan, therapeutic needs and contact and Medway Council ‘s care of T would have been subject to the necessary judicial scrutiny applying the relevant careful tests relating to the threshold and welfare criteria set out in the Children Act to ensure interference with their family life was in T’s best interests, necessary and proportionate.

 

 

Section 20 is the power under the Children Act 1989 for children to be in foster care without a Court order – it is categorised as a voluntary foster placement. Typically, the parents are asked to consent, or even they come forward and say that they can’t manage, aren’t coping or the child needs a break.  Section 20 can be a really useful tool – if there’s genuine cooperation between the parents and the social worker, nobody wants to force the case into Court and up the stakes.

Where it starts to get problematic, as we’ve seen from a number of cases over the last three years, is where the consent and cooperation isn’t that genuine but that parents either don’t understand or have explained to them what section 20 really is and that they can say no, or are pressured/cajoled/threatened into agreeing, or in the latest spate of cases where a Local Authority is relying on a parent simply not objecting to the foster placement.  There are reasons why a parent might not come forward and object – most obviously that without access to a lawyer or it being explained they don’t even know that they can, or they are afraid of rocking the boat, or they are having faith that the system will work and do the right thing, or that they are intimidated that if they object then the case will be rushed off to Court and that this will be bad for them.

So ultimately, section 20 drift cases are about an imbalance of power – the State is taking advantage of the fact that parents without access to a lawyer won’t object or will agree to section 20.  And so it becomes an alternative to going into Court proceedings. Court proceedings are expensive, and involve a lot of work (going to Court, writing statements and chronologies etc) and of course in Court social workers don’t necessarily get things their own way and the Court can disagree with them.  So there can be a temptation, if the parents aren’t demanding the child back, to just keep going with the section 20 foster placement. And this of course is the drift element – these children can wait months or even longer, sat in limbo – nobody has decided whether the child can ever go home or whether the child’s future lays elsewhere, the case just drifts.  By the time the case finally gets to Court, that relationship between child and parent can be hard to put back together, and the problems the parent has may take time to address and it can be harder for them to get the child back.

Section 20 drift, in short, is bad.

It may be happening more as a result of a series of pressures – firstly a general demand within Local Authorities to save money and cut costs (due to significant cuts to their budgets) and secondly the reforms to Care proceedings that mean that more and more is expected to be done before going to Court – there can be a temptation to keep the case out of Court until all of the assessments are done and everything is just perfect. It is a bit of an unintended consequence – which we’re seeing a lot of since the PLO (Public Law Outline) reforms came into being.  This isn’t a problem limited to Medway here, or Brent as in the last reported case, or Gloucester/Bristol where their Judge has really seized the issue.  I’ve worked in a lot of Local Authorities, I’ve worked against a lot of Local Authorities and I’ve seen it all around the country.

 

That’s the background.

On with this case

Medway Council v M &T 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B164.html

 

This case was decided by Her Honour Judge Lazarus  (readers may recall her from the case where a mother tape recorded a foster carer being dreadfully abusive to her https://suesspiciousminds.com/2015/06/03/tape-recording-paying-off/   )

 

When the child T, was five, she came to the attention of Medway Council, and her mother M, was having mental health problems and was detained under the Mental Health Act. Medway placed the child in foster care, but didn’t actually have mum’s consent (she probably would not have had capacity to give it in any event)

 

 

 

  • T was born on 9.1.08, making her 7 years 9 months old now, and just 5 when she first came to the notice of Medway Council. This was due to a referral made on 8.2.13 by T’s school that T was being collected by a number of adults and concerns that Mother may be a victim of trafficking. Coincidentally, within a few days T was placed in emergency foster care, as her Mother was detained in hospital under the Mental Health Act on 11.2.13.
  • It is clear that Mother was too unwell to discuss T’s accommodation and there are no records whatsoever of any discussion with Mother of T’s whereabouts and care until her discharge in August 2013. It is likely, and there is no evidence to the contrary, that there was no proper explanation to her within this six month period, and Medway Council do not suggest there was, albeit I accept that for some of this time she would have been suffering from severe and disabling mental ill-health. There is certainly no document suggesting that there was any agreement by Mother to this accommodation. What Medway Council claims is that this was a different kind of lawful accommodation under s20, until she was well enough to consider T’s accommodation by Medway Council. It was not, and I shall deal with this further below.

 

 

That argument you may recall from the case I wrote about last week, decided by Her Honour Judge Rowe QC  – in which she decided that the power under section 20 needed to be exercised with capacitious consent, and not merely relying on the absence of objection.

 

https://suesspiciousminds.com/2015/10/12/unlawful-removal-of-a-child-compensation-paid/

 

[That’s the one where I used the comparison of a 10 year old assuming that it was okay to eat all of the Penguin biscuits whilst his mum is upstairs because “mum didn’t tell me that I COULDN’T]

 

In this case, T remained in foster care ostensibly under section 20 until care proceedings were issued – the period involved was 2 years and 3 months. She was in ‘voluntary’ foster care rom February 2013 until proceedings were finally issued in May 2015.  The mother had not even known that this had happened until August 2013, some SIX MONTHS after the child was taken into foster care.  Mother and baby are currently together in a specialist foster placement, and I wish them both well.  As the Judge points out, this is the longest reported case of section 20 drift.

 

The Judge went through everything very carefully (it is an extremely well-drawn judgment and would be recommended reading for anyone dealing with such a case – particularly the analysis of damages)

 

The conclusions were :-

CONCLUSION

 

  • For all of the above reasons I find that Medway Council ‘s accommodation of T and her removal from her Mother was unlawful, and as a result I have no need to go on to consider whether it was ‘necessary’ within the meaning of Article 8(2) ECHR.
  • I also find that Medway Council failed to issue proceedings in a proper and timely manner. This was despite warnings from June 2013 onwards. I have not found it possible to understand why there arose the original misunderstanding of the correct legal approach, why the advice given was not followed, why further legal planning meetings were not held until 2015, nor even why proceedings were not issued immediately in 2015 once the matter was looked at again by Ms Cross in January. The period involved is 2 years and 3 months, the longest currently reported in any case reported on this issue to date.

 

REMEDIES – JUST SATISFACTION

A. DECLARATIONS

 

  • T and Mother are entitled to the following declarations:

 

a. The local authority breached their rights under Article 8 ECHR in that they

i. Unlawfully removed T from Mother’s care on 11.2.13;

ii. Failed to obtain properly informed capacitous consent for T to be accommodated, or to consider/assess adequately the question of the Mother’s capacity to consent, at that date or subsequently;

iii. Accommodated T without Mother’s consent between 11.2.13 and 7.5.15;

iv. Failed to inform Mother adequately or involve her sufficiently in the decision-making process in relation to T;

v. Failed to address the issues relating to their relationship and contact between them adequately;

vi. Permitted unacceptable delay in addressing all of the above.

b. The local authority breached the rights of T and Mother under Article 6 ECHR in that they failed to issue proceedings in a timely manner.

 

What were Medway going to do to avoid this in the future?

 

 

  • Ms Cross has set out in her statement a number of vitally necessary improvements to Medway Council’s procedures and performance which I heartily welcome, particularly as this is not the only case where the use of s20 by Medway Council has been of concern (I am aware of at least three such others, including a reported judgment of mine earlier this year). The proof, as they say, will be in the pudding and depends on consistent and rigorous application of these reforms. They are as follows:

 

a. “During the period of January to July 2015 we have reviewed a number of cases where the child/ren are accommodated under S20 and where the child/ren are aged 12 and under. Where required we have issued or are issuing proceedings;. We have begun this process for children aged 12 and over and this will complete by 1st October 2015.

b. These reviews will continue and with immediate effect we have agreed that our Legal Gateway Panel, chaired by the Head of Service for Advice and Duty, Child Protection and Children in Need, will continue to monitor and track children already accommodated under S20 and will in future review all new cases involving s20;

c. The reduction in the use of S20 accommodation is built into all our service and improvement plans

d. We have reviewed how court work is undertaken within the LAC & Proceedings service and going forward will be targeting this work at the social workers who have the most suitable skills for court work;

e. Training has been provided in recent weeks for social workers on legal processes and proceedings, including the issue of s20, and this will continue on a rolling basis throughout the year.

f. We will be holding workshops on the use of S20 in September and October to provide clear guidance and support for Social Workers to ensure they are equipped to deal with any s20 issues arising and that they fully understand how S20 should be utilised and monitored. We will be providing new policies and procedures for staff across CSC in the use of s20. We plan to have these finalised by September 18th and we would be happy to share these with the Court and partner agencies including Cafcass at our quarterly meetings with the Judiciary and other agencies.

g. At monthly meetings between the 2 Heads of service from CSC and the Head of Legal S20 will be a standing agenda item and we will discuss each child who has been accommodated under s20 in the intervening month to satisfy ourselves that the appropriate management oversight and case related activity is in place.

h. I am in discussion with the Head of Adult Mental Health services to organise workshops for staff on capacity issues and deprivation of liberty (DOL’s) awareness. I hope that these workshops can be completed by 01.11.2015.

i. We have an adult mental health duty social worker located within our advice and duty services to advise and assist on those cases referred to us where the parent/s have a mental health or learning disability.

j. We are organising PAMs training for a number of staff so that we have more staff located within CSC who are able to assess parents with a learning disability in order that we can improve the service provided to them. We hope that this will have taken place by 01.12.2015.

k. We have increased management capacity and have formalised an Operational Manager post in each of the service areas. They will have direct responsibility for ensuring that court work proceeds in a timely manner and that work is of a high standard

l. S20 cases will also be reviewed at a monthly Permanence Panel wherein the permanence planning for LAC children is reviewed. This panel, chaired by my HoS colleague has attendees from Legal services, the Principle IRO and the adoption service.

m. As a result of this review I am also working with my colleagues to review the S20 form that parents sign and we are introducing a checklist for staff when seeking S20 accommodation to ensure that they address all the salient issues with parents. These issues will include considering the parent/s needs arising from a mental health/learning disability. These reviews will have completed by 31.08.2015 and the updated forms will be in use thereafter.

n. Finally the reviewing service have implemented a new review whereby the allocated IRO will review all cases between the LAC review (ie every 6 weeks) to ensure that all planning is on track. Where required concerns will be escalated to the appropriate Operational Manager and if there is still no resolution to the relevant Head of Service.”

 

 

Now, an important check and balance on social worker’s actions or inactions is supposed to be the Independent Reviewing Officer system. The IROs are supposed to hold social workers to account and make sure that things like this don’t happen.  There are regular reviews of children’s cases when they are in foster care. What ought to have happened at those reviews was that the IRO should have got the social workers to commit to either a plan of short assessment and then review the outcome, or make a decision to return the child to mother’s care, or make a decision that the child couldn’t go home and make the Court application to have the child’s long term future resolved. That didn’t happen.

 

LOOKED AFTER CHILDREN REVIEWS & INDEPENDENT REVIEWING OFFICERS

 

  • Ms Dunkin’s statement is helpful in its analysis of the history and the role of the Independent Reviewing Officers (IROs). They are supposed to perform a crucial role monitoring the care of Looked After children by reviewing and improving care planning and challenging drift and delay.
  • It is highly concerning that there have been five IROs in the last two years before proceedings were issued.
  • There was no IRO allocated until 18.3.13, five weeks after T was accommodated, so she was therefore not afforded a review of her care within 20 days of her accommodation as is required under the IRO Handbook and Placement Regulations. By the end of May that IRO is recorded as being on long term sick leave, and this is considered to be the reason why there is no minute of the first LAC review available.
  • Every LAC review minute inaccurately records/repeats the date of T’s accommodation as having taken place a month later than it occurred.
  • I commend the second IRO LC for correctly requiring a legal review of Medway Council’s position not to take proceedings (11.6.13), however despite it not having taken place by the next LAC review that LC conducted there then began the series of failures by LC and each subsequent IRO to challenge the Social Worker and team manager and director of services about failing to follow the clear recommendation initially made in June 2013.
  • No subsequent LAC reviews (18.9.13, 17.4.14, 8.7.14, 25.11.14) made any further clear recommendations as to parental responsibility, legal status or the use of s20 although the issues are mentioned, save to repeat (presumably by cut and paste as opposed to direct engagement with the issue) the same paragraph that set out the original recommendation of 11.6.13. By 8.7.14 what is added is a recommendation to seek legal advice with a view to securing T’s permanency. I am concerned that this betrays that the review process and LC failed to recognise both the full range of T’s needs and her and her Mother’s rights to family life, and had moved on simply to consider how to regularise what had by then become the status quo, T having been in foster care for almost 18 months at that date. This is particularly worrying as that LAC review meeting also demonstrated Mother’s vulnerability: she was accompanied by an extremely domineering ‘friend’ who described herself as an ‘auntie’ (and whom the Poppy Project is concerned may have had some involvement in Mother’s exploitation), and which led to a decision that all future meetings must be conducted with Mother alone.
  • Contact is touched on in the LAC reviews, but no clear picture or recommendation emerges. For example, the review of 17.4.14 mentions the reintroduction of contact I have already referred to, but little further is pursued. At the same meeting the problem with T’s passport and therefore the implementation of respite care during her foster carer’s holiday was raised and not addressed adequately, let alone robustly.
  • Overall, it is clear that although the fundamental fault lay with Medway Council by its social work and legal teams, the IRO process failed T, and by extension her M, by frequent changes of IRO and each one failing to rigorously apply themselves to the outstanding issues with attention or subsequently following up Medway Council’s failings, and if necessary escalating the issue. Ms Dunkin rightly concedes that previous IROs were not robust enough in this respect.
  • The statutory provisions, regulations and the guidance in the IRO Handbook covering the function and performance of IROs has been carefully reviewed elsewhere (see for example A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) at paragraphs 168-217 in particular). I do not propose to make specific declarations in relation to this aspect of the case. No such declarations are sought, and the appointment and management of IROs falls to the relevant local authority in any event. Additionally, I take into account that the correct recommendation was made in June 2013 and subsequently repeated, albeit it was not followed up adequately or at all, and was ignored by the local authority from the outset.
  • Ms Dunkin confirms that since October 2014 there has been a ‘root and branch review’ of the IRO service: immediate allocation of an IRO, with 90% of reviews now on time; improved IRO requirements and monitoring; performance and training audits with areas of improvement requiring action within a set timescale; direct input by IROs onto the electronic system at Medway Council so alerting team managers to implement their own quality and performance processes; shortened timescales for escalating challenges with a 20 day period before it is referred to the Director of Children’s Services; and mid-way reviews between LAC reviews enabling the IRO to check on progression of care plans and recommendations. Ms Dunkin as Principal Reviewing Officer now sits on the Legal Gateway Panel, resource panel and permanency panel.
  • Again these are welcome and necessary improvements, but their effectiveness will depend upon rigorous application of those improved practices.

 

 

 

On the issue of costs, we have a peculiar situation at present, where if a parent follows the law which is to make the Human Rights Act compensation claim within care proceedings, the Legal Aid Agency (the Government department who pay for the ‘free’ legal representation of a parent within care proceedings) will take all of the compensation to cover the legal costs, and the parent or child would only get anything left over.  That pretty much sucks.  Is there anyone who thinks that it is the Legal Aid Agency who should be compensated for what was done to mother and this child? Of course not.

 

So, apparently there are moves afoot to reverse this fairly recent and frankly moronic policy, and the Judge reserved the issues of costs until then.  If the policy doesn’t change, I’d expect an order that Medway also pay mother and T’s court costs, so that the compensation award goes to the mother and T rather than to a Government agency.

 

While I have assessed this award, I am asked for the time being not to order its payment nor to consider costs. This is at the request of the Official Solicitor who is currently investigating the most appropriate way to manage such an award for a protected party within care proceedings given that this is an award properly made within care proceedings (cf. Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam)) and Mother is rightly in receipt of non-means and non-merits tested Legal Aid, but where concerns exist that the Legal Aid Agency may intend to take steps purporting to claim the whole costs of Mother’s representation in these care proceedings from that award. I shall therefore deal with the issue of ordering payment and costs at a later date.

 

 

The Judge here also considered the issue that I raised in the Her Honour Judge Rowe case, as to whether a very short piece of section 20 accommodation if the parent is unable to care for the child and one is establishing whether that’s a really short period  (i.e mum goes into hospital overnight, but the next day is released with medication and is fine) might be warranted – because the alternative is for the mother to be sectioned and on the same day social workers go to Court to get an Emergency Protection Order which would be awful if she happened to be released the next day.

 

It could be argued that where there is such an emergency as this, and indeed as in the Brent case, that it may be reasonable to wait for a short period without taking proceedings in order to review the parent’s progress in hospital in the event that their ability to care for their child might return. This would then avoid the stress and expense of time and resources in bringing unnecessary proceedings that would then have to be withdrawn. I concur with HHJ Rowe’s analysis that a month in the Brent case was too long. It may be reasonable, in rare and very clear cases where such enquiries could be reasonably considered as likely to bear fruit, to wait for at most a day or two while the local authority explored the possibility of an imminent return to a parent’s care. I bear in mind here that both in logic and principle such a period should be less than the time limit of 72 hours which is stipulated in the Children Act as applicable to PPOs. However, otherwise, save perhaps for the first few hours while the child’s status is considered, and advice sought and steps taken to issue proceedings, it must be right that proceedings are brought as immediately as possible for all the reasons discussed above.

 

I think that’s really sensible and pragmatic.  Like the Brent case, this is not legally binding precedent on anyone other than the parties who were in the case, but it would certainly be persuasive in such cases and equally a Local Authority who go beyond that 72 hour period are badly exposed to a Human Rights claim of this type.

Local Authority, go and sit in the naughty corner

 

We don’t seem to go more than about a week without some Local Authority or other getting a judicial spanking, and here’s another.

 

[I probably need to create a new Category on the website of  ‘judicial spanking’. No sooner said than done. If you did type ‘judicial spanking’ into Google and have arrived here, then I apologise, and I hope that you weren’t doing it on HMCS computers…http://www.theguardian.com/law/2015/mar/17/three-judges-removed-and-a-fourth-resigns-for-viewing-pornography-at-work ]

 

TM and TJ (children : Care Orders) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B83.html

 

Fundamentally, these complaints are about the Local Authority turning up to the Issues Resolution hearing, without its final evidence being in order, so that nobody really knew what their plan was and certainly hadn’t been able to respond to it.  It also touches on an issue dear to my heart, where LA “A” who are running the case, decide at the last minute that LA “B” should have a Supervision Order for these children and expect that authority to agree to this without knowing any of the background.

 

 

    1. On 12th March 2015 the Bristol Magistrates ordered that the case should be made ready for a preliminary which is called an ‘Issues Resolution Hearing’ (‘an IRH’). The intention of that kind of hearing is to identify the issues that remain between the parties and see whether they are capable of being resolved without the need for a full final hearing. It is not just a ‘directions hearing’ because Practice Direction 12A of The Family Procedure Rules 2010 (which is well known to family lawyers) provides that, at the IRH:
    • The court identifies the key issues (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
    • The court considers whether the IRH can be used as a final hearing.
    • The court resolves or narrows the issues by hearing evidence.
  • The court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing.
  • The court gives final case management directions.
  1. If, by the time of the IRH, the Local Authority has not filed adequate evidence, it means that the whole purpose of the IRH is negated. Thus the magistrates ordered that, by the time of the IRH, the Local Authority should have filed its final evidence including its assessment of the parents. The Local Authority had been ordered to file its final evidence (including all assessments) by 15th June 2015, the parents had been ordered to file position statements by 22nd June 2015 and the guardian had been ordered to file a position statement by 23rd June 2015. There was to be a meeting of advocates on the 16th June but that had to be abandoned because the Local Authority’s final evidence had not been filed. The court was notified that there were delays. Some final evidence was filed by the Local Authority by 22nd June 2015 although the mother’s solicitor did not receive any of the final evidence until the morning of 25th June 2015.
  2. On 25th June 2015 this case was referred to me by the Magistrates. The parties and their legal teams had all been at court since 1 p.m. that day. I knew nothing of the case before it came in front of me late that afternoon. There were the following reasons for that referral: i) All parties accepted that the Local Authority had not filed adequate final evidence. The Local Authority itself presented its case on the basis that the assessments that it had conducted were inadequate and could not be relied upon.ii) The care plan proposed that the children should go to live with the father in the east of England under a supervision order to a Local Authority in that part of the country. There was no input from that other Local Authority and there was no indication of how that authority might support the father if the children did go there. That authority was first notified of the suggestion that there should be supervision orders in its favour (and also of the hearing on 25th June 2015) on 19th June 2015. Before the email that was sent on the 19th June, that authority had no knowledge of the case at all. It is not surprising therefore that that authority did not consider that it could participate in the hearing on 25th June; it has never seen the papers in this case.iii) There was no adequate evidence of the arrangements that the father would make if he were to care for the children there. In particular, the father’s plan, if he does move to the east of the country, is to be assisted by his aunt in the care of the children. There is no evidence from her; there is no more than a ‘viability assessment of the aunt’ that was filed on 17th April 2015. Although the agency social worker who dealt with the case before leaving is thought to have spoken to the aunt before the care plans were filed, there is no record of any such discussion.iv) There had been no adequate assessment of the mother. She opposes the suggestion that the children should live with the father and wishes to care for them herself. There was an assessment of the mother that was carried out in November 2014 but this was not a parenting assessment and was carried out when the children were already in foster care. There had been a previous assessment of her in January 2014; this was a parenting assessment and was completed at a time when the children were still with her; however, that assessment was underway at the time of the birth of the second child and expressly was not an assessment of the mother’s ability to care for two children. There simply was no parenting assessment of the mother within the proceedings and there was no assessment of her ability, as a parent, to care for two children. That is despite these proceedings having been running now for very nearly six months, with the children in foster care.v) Because the Local Authority had not put forward any adequate evidence or proposals it meant that the parents did not know what case they had to meet. Even now I do not have any idea what the Local Authority recommends for these children.vi) The root cause of the problem lay in the fact that the previous social worker, who was an agency worker who had been employed in January 2015, had been charged with the responsibility of writing assessments of the parents, had said that she had done so and then left her temporary employment with the Local Authority without fulfilling that responsibility properly, I am told by the Local Authority. The new social worker had only been involved in the case for three weeks prior to the IRH on 25th June and, quite understandably, did not have the knowledge upon which to write fresh assessments.

    vii) Given the omissions in the Local Authority assessments I was told that it would take 14 weeks for the current social worker to complete assessments, given her case load and summer leave. The alternative, I was told, was that an independent social worker could be instructed to report by the 14th August. The result now is that the Local Authority will have to pay from public money for an independent social worker to be employed to do the job that a social worker, employed by the authority, should have done.

    viii) Given the shortage of time, the final hearing therefore could not be sustained at the beginning of July and another date would have to be found.

    ix) The work of the guardian was materially impaired. How could she advance recommendations when she did not know what the Local Authority proposed.

 

 

The case had to be adjourned, and an independent expert had to be appointed to conduct the parenting assessments that the Local Authority hadn’t managed to do, and the LA had to pay for that.

The Judge, obviously being very critical of these failings, said this towards the end of the judgment:-

  1. I understand the difficulties that the Local Authority faces and criticisms from the bench do little to repair the problems. Indeed criticism can simply add to the recruitment difficulties that Local Authorities face. From the time of my first speech as Designated Family Judge in this area I have stressed that there are four alliterative concepts that I wish to drive forward – i) a collaborative approach amongst the many professions and institutions involved in the family justice system; ii) Proper communication between those involved in that system; iii) a recognition of the need for changes in practice and iv) a commitment to the people who really matter – the children, family members and professionals who are obliged to turn to the family court system when there are family and personal difficulties that cannot be resolved consensually.
  2. But I would like to make these points:i) If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.ii) Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.iii) Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.iv) If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.
  3. In this court area there has been a recent and considerable increase in the number of cases that are not meeting the 26 week statutory deadline. Of 181 public law cases there are 49 cases that are now ‘off track’. That means about 27% of our cases are exceeding the 26 week deadline. This has got to stop. Many people have worked extremely hard to improve upon the performance of this area and we are not prepared to see that slide away from us now. This type of poor case performance is unnecessary and is damaging to the system as a whole.
  4. There are reasons why some cases may need to exceed the 26 week deadline. For instance there are cases involving complex issues of fact (e.g. where there is an allegation of a serious offence having been committed), cases which involve large and complex family dynamics and cases involving complex medical issues. This is not such a case. There are far too many cases like this one where the issues are straightforward and where delay is manifestly harmful to the children concerned. The only reason why this case has been so delayed is inefficiency.
  5. If three days of court time are lost in this way it may well not be possible to fill those days with other work where this sort of thing happens so close to a final hearing. Not only are adjournments plainly contrary to the welfare of young children, they also cost a lot of public money and mean that very valuable court time is being lost. There is now immense pressure for every hour of court time to be used to its very fullest advantage and if one case is neglectfully prepared, as this one has been, it means that other cases and, other children and other parties suffer. It also means that public money is being used to fund the inefficiency of those people who do not engage in the system properly. It is perhaps commonplace but, nevertheless I do observe that the Local Authority that contends that the mother has not ‘co-operated with professionals’ has, itself shown a distinct and at least commensurate lack of co-operation with the court.
  6. I am therefore adjourning this case to an IRH before me in September and will list a final hearing, again before me, as soon as possible afterwards. I will also try to call the case in for review once the report of the independent social worker has been obtained. I will release this judgment on BAILII. I know that it will be picked up at least by the local press and I consider that people in South Gloucestershire need to know how their Local Authority is functioning.

 

I think that there’s a lot of powerful and impressive stuff in this judgment. The ‘four C’s’ approach of Collaborative, Communication, Change and Committment is a damn fine philosophy.

I had a long quibble about whether the passages in the judgment that say that there are ‘far too many’ expert assessments in Bristol Courts and that the Courts must ‘crack down on them’ were somewhat blurring the lines between the statutory requirements and judicial impartiality on applying the requirements to the facts in an individual case, and Judges in their role of being spanked for their poor performance on statistics.  But I think on re-reading that HH Judge Wildblood QC does (just ) enough to put this marker on the right side. (just)

 

So, instead,this (unconnected to HH J Wildblood QC who uses plain English where possible):-

 

Bearing in mind that coming across an impenetrable allusion in judgments is an occupational hazard  (“I thought I had seen a white leopard”  “As in the famous quotation by Lord Wellington  [quotation not supplied]”  “contumelious” and so forth),   I think that we do rather better than America.  As you may have heard, in the gay marriage case in the US Supreme Court, the words ‘apple-sauce’ ‘arrgle-bargle’ and ‘jiggery-pokery’ were used, but this Judge goes even further

http://blogs.wsj.com/law/2008/02/04/the-linguistic-talents-of-judge-bruce-selya-2/

 

 

  • Defenestration. Don’t walk past an open window if Selya is inside writing an opinion: He is liable to defenestrate anything and everything. Items thrown out the window in Selya opinions include speedy trial claims, punitive damages awards, arbitral awards, claims of co-fiduciary liability and laws that unduly favor in-state interests. The latter, Selya has noted, “routinely will be defenestrated under the dormant commerce clause.” 
  • Philotheoparoptesism. Philotheoparoptesism refers to the practice of disposing of heretics by burning them or boiling them in oil. Another judge challenged Selya to include this word in a decision, which resulted in its sole reported usage (in secular courts, at least). For the record, Selya declined to consign a misguided prosecutor “to the juridical equivalent of philotheoparoptesism.”
  • Repastinate. To repastinate means to plow the same ground a second time. When considering appeals that raise previously decided issues, Selya and his colleagues have come down firmly and repeatedly on the side of “no repastination.”
  • Sockdolager. A sockdolager is a final, decisive blow. Selya’s published opinions deliver almost 60 sockdolagers, which is more “sock” than one finds in the decisions of the rest of the federal judiciary.
  • Thaumaturgical. The 1st Circuit takes a dim view of magical arguments, or what in one opinion Selya called “thaumaturgical feat[s] of rhetorical prestidigitation.”

 

 

Defenestration I knew, due to the ‘Defenestration of Prague’ and thaumaturgical I knew, because I love magic. The others, not a scooby.

Of these words, I found that only one of them appeared in Bailii law reports – three times in all.  http://www.bailii.org/ew/cases/EWCA/Crim/2009/649.html

 

In R v Johnson 2009, I think the Court of Appeal use it wrongly, when they describe a burglar leaving a building .As a matter of inference, he left the premises by means of defenestration .

I think that defenestration involves throwing something out of, or being thrown out of. I don’t think jumping or climbing out counts.

The second one Downing v NK Coating Limited 2010 http://www.bailii.org/nie/cases/NIIT/2010/07397_09IT.html fails for the same reason, but it does bizarrely involve the Court having to think about a lab assistant who left his office by climbing out of a window, thus leaving a urine sample unattended and potentially able to be tampered with.

And Ormerod and Gunn  is more of an essay (an interesting one) and once again, is referring to cases of people jumping out of windows, albeit to escape a threat of assault. It also talks about our old friend, Wilkinson v Downton 1887 http://www.bailii.org/uk/other/journals/WebJCLI/1997/issue3/gunn3.html

 

So I haven’t found the term being used in its proper sense. The challenge is on.

 

It appears that the English Courts are fonder of throwing things out of windows then they are in magic, ploughing, boiling people in oil [glossing over the Middle Ages law reports], or whatever the heck sockdologing is…

 

 

[Ha! In an unwitting irony, it turns out that one meaning of sockdologer is to determine something in a decisive and final manner. Which is clearly something that the English Courts aren’t interested in doing.  I honestly didn’t know that when I wrote the previous sentence. ]

Shepherd’s pie

Long long time ago, when I was young and full of vinegar, and the other thing, I had a case. Private law proceedings. About twenty minutes into the mother’s evidence, the Judge carefully and deliberately closed his bundle, screwed back the cap on his fountain pen, looked at us and said “We are going to be in Court for five days on this. Is the whole case really going to be about shepherd’s pie?”

 

So I will reassure the reader now that this whole post is not going to be about shepherd’s pie. But I quite often use shepherd’s pie as an illustrative point when I talk to social workers about ‘good enough’ parenting.

mmmmm. (sorry to any vegetarian reader, but it really is delicious)

mmmmm. (sorry to any vegetarian reader, but it really is delicious)

We all have a pretty reasonable sense of what threshold criteria is – as a lawyer I have to look at a long chronology, or a semi-rambling email and find the bits that might actually amount to threshold.  Social workers understand threshold criteria and what it looks like. That’s what you need to get the child into care. That’s what decides whether the Court has the legal ability to make an order.

 

But what do you need to get the child back?  Well, firstly, there’s a misapprehension that once the child is in care, the onus is on the parent to show they’ve changed, to show that they don’t do heroin any more, to show that the ex-boyfriend really is an ex, to show that they can keep on top of the housework.  Remember that the burden is on the Local Authority, not the parent.  That’s not to say that if the concerns in the case are about heroin, that you are going to be fine if you keep taking heroin (because you’re not).

And then, the second misapprehension is about what is being looked for. Everyone hears and knows the expression – good enough.  We’re not looking for perfection, we’re looking for ‘good enough’.

 

My question, is where are we putting that bar of ‘good enough’ to see if the parent is above it, or below it?  I’ve done this exercise before when training, and we can do it now.

Imagine that you’ve got 1000 children, selected at complete random. How many of them do you think will be receiving care that’s not ‘good enough’ or better ?  Do your answer firstly just on gut. Just what genuinely comes into your head.

If you are honest, it is probably somewhere between 100 and 500.  Because the expression “good enough” immediately makes you think about average, or below average.  The anchor is immediately making you think about ‘good’ parenting.

But ‘good enough’ care isn’t about the care being comparable to an average child’s experience, or even a below average.  It is about the level of care that would mean that the child was suffering significant harm that wasn’t harm that could be realistically managed.

Looking at the care demand by population statistics, the very highest area in the country, currently Torbay, would be in care proceedings for 2 of those 1000 children. There are a handful that would be nearly 2, but most of them would be 1 or less than 1.  Of a million random children, somewhere between 100 and 230 children would be receiving care that was below good enough.

If you said 1 or 2 out of 1000 as your gut answer, either congratulations, or you are a liar, or you have heard me do this routine before.

 

So, if you are looking at the care that a child would be likely to receive and thinking about whether it is ‘good enough’,  it doesn’t help to be anchoring your mental picture as being average, or even in the bottom 10%. You are really talking about lining all of the children up in terms of the quality of care that they get, and only the bottom 0.1% would be getting care that wasn’t “good enough”

 

I’ve worked in many authorities (my current one is not that fixated about it) where the parenting assessments used to feature prominently an attempt to teach the mother how to cook shepherd’s pie from scratch (see, we did get back to it). Go to the shops, buy the ingredients, cook a shepherd’s pie.  It can be quite a nice exercise – it gets the children a nice meal, home cooked and full of good stuff, teaches a parent about planning, budgeting, organising, making time to do something. I can see why people do it.

But line up those 1000 children again – how many of them didn’t get a homemade meal yesterday? Or over the last week?  It can’t be a barometer of ‘good enough’ care, whether someone can cook a shepherd’s pie from scratch.  It is nice, it probably improves the child’s life, but that’s not a test of ‘good enough’ – a parent’s case doesn’t become not ‘good enough’ because they give their kid oven chips and Crispy Pancakes rather than homemade shepherd’s pie.  And if you are wincing at the idea of a child eating that sort of food, ask yourself how you would feel about a child (or an adult) eating Marks and Spencer’s  Chicken Alfredo ready meal, or Tesco’s Finest Boeuf Bourguignon?  It isn’t better, just because it is middle-class. Neither of them are home cooked, both of them are made in ways that you wouldn’t really want to think about.

Of course we want children to eat well. Of course we want a balanced diet with all the food groups, and five a day, and lots of fibre. And of course children who eat crap aren’t going to have such a good quality of life as the ones that do eat well, with parents who make them food from scratch. It just isn’t that relevant in assessing good enough parenting, that’s all.

The other classic meal that we try to teach parents to make from scratch is spaghetti bolognaise.  We’re really into mince in a big way.

It’s quite reminiscent of a 70s childhood, or as Sean Locke puts it in this clip  (terrible quality on the clip, sorry)  – the Seventies were pretty much just a sea of plates of mince in various forms being put in front of him – and he didn’t drink water till he was 15, subsisting on squash  (usually squash that was full of Tartrazine)

 

The thing about ‘good enough’ care being the test is that it is massively subjective.  Someone – a lawyer, a social worker, a Guardian, a Judge, is thinking about ‘good enough’ care and what they are doing it is comparing the parents care, or how they think the parents care would be, against their own notional idea of what ‘good enough’ care would be like.  If those people don’t even agree on how many of those random 1000 children would be receiving care that wasn’t ‘good enough’ or better, then how do they do the next bit which is imagining what care that is not ‘good enough’ would be like?   And your anchoring of what ‘good enough’ care is like is probably comparing what this child’s home might be like with ones that you know – your home, your home as a child, the home of the friend that you had where you never wanted to stay for dinner…   If you are thinking that this child’s home won’t be as nice as those, even the bad ones, then you have a bar that is too high.

I prefer, to be honest, to use the term ‘barely adequate’ rather than ‘good enough’.  Of course, nobody wants to talk about the outcome for a child of care proceedings being that they go back home for a life that is’barely adequate’ – it feels like we’re letting the child down, like we should have fixed more of the problems, that things ought to be radically improved by the end of care proceedings, not just a smidge better than when we started.  I completely get that. And there’s nothing wrong with aspiring to do those things – there’s absolutely nothing wrong with ending the case with a mum who DOES know how to cook Shepherd’s Pie from scratch. It is just that she doesn’t fail to be ‘good enough’ if she can’t do it.

If we put the bar of ‘good enough’ at home cooked meals from scratch, we’re asking parents to pole vault over that bar, when the reality is that the bar is a really low limbo bar that they just need to step over.  And if you want to know whether the parent is above or below the bar, it really does help to know where that bar is.

 

The President even distilled it in Re S and T today,

 

But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

not really, it is mince again! you know you want it

This is a vegetarian shepherd’s pie, to make it up to those poor veg loving readers

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